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Birds > private property rights in some courts.

Yesterday, we learned the Florida Supreme Court denied review of ourGanson v. City of Marathonregulatory takings case. Weve previously written about the case here, here,here, and here. In a nutshell, government officials in the City of Marathon, along with officials in Monroe County and the State of Florida, decided that Gordon and Molly Beyer, a married couple who owned a 9-acre piece of property in the Florida Keys, lost all rights to develop on the nine acres an island known as Bamboo Key because itmade a fine bird rookery. And when those officials made that decision, they further decided they did not have to pay the Beyers for the taking despite having rendered Bamboo Key virtually uninhabitable. I say virtually because the officials in their perverse form of benevolent despotism graciously allowed that the Beyers could use the island for temporary camping.

I kid you not.

Unsurprisingly, Pacific Legal Foundation believes that this amounts to a total taking of the Beyers property. We will now seek review of the case at the Supreme Court of the United States. The last time we took an adverse Florida Supreme Court decision to the nations High Court, we won a crucial victory for property rights on behalf of Coy Koontz and the Fifth Amendment rights of all Americans. We intend to win another case for all Americans this time, as well.

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Florida Supreme Court rules for birds, against Fifth Amendment ... - Pacific Legal Foundation (PLF) (press release) (blog)

Enlarge / John Krafcik, CEO of Waymo, debuts a customized Chrysler Pacifica Hybrid in January 2017.

Bill Pugliano / Getty Images News

"What Ive told you is that you can submit the privilege log to me, in camera, without giving it to anyone else and I can evaluate it, which aspects, if any would be incriminating," US District Judge William Alsup said, addressing a lawyer representing the engineer, Anthony Levandowski, during the hearing."Im not ruling against theultimate assertion of the privilege, but youve got to do more than just say in court, Fifth Amendmentyou have to do a privilege log and go through the process."

The case pits Waymo against Uber, which in turn is in a tense situation with one of its own employees, Levandowski, the head of its self-driving division.

Levandowski is now set to be deposed by Waymo lawyers this Friday at their San Francisco offices. He must also respond to a subpoena by handing over materials that he is accused of stealingthousands of secret documents from his time with Waymoparent company Google. On Wednesday, Judge Alsup quashed four of the six distinct items requested in the subpoenabut allowed the most substantive, the allegedly "misappropriated materials," to stand. (The third item, "All communications between You and Uber between January 2015 and August 2016," will also remain.)

Earlier this year, Waymo sued Uber for alleged patent infringementWaymo claimed that Levandowski, a former Waymo and Google employee, stole 14,000 confidential documents prior to his departure.Armed with that data, Waymo further alleged, Levandowski founded a company called Otto in early 2016, which was then acquired by Uber for $680 million only months later. Waymo argued that this cache of materials allowed Uber to rapidly and seriously compete with Waymo in self-driving technology. Late last month, Waymo lawyers asked the judge to impose an injunction that would compel Uber to stop using any of the allegedly stolen data.

In late March 2017, Levandowski invoked his Fifth Amendment right to protect against self-incriminationdespite the fact that he neither has been charged with a crime, nor is he a named defendant in the civil suit. So far, the engineer has refused to hand over any documents or data related to the lawsuit. In addition, Uber seems unable to compel Levandowski, who still remains employed at Uber, to give up the information.

"As an employer you cannot force an employee to turn over personal property," Arturo Gonzlez, one of Ubers attorneys, told Ars in a phone interview after the Wednesday hearing. However, he noted, Uber would be "very pleased" if Levandowski would hand over any relevant data that he may have.

During that late March court hearing, when Uber indicated it would not pursue any data that Levandowski held privately, Waymo tried a different tactic. It served Levandowski'sattorneys with a subpoena, commanding Levandowski to produce substantial amounts of materials and to appear for a deposition on Friday, April 14. Levandowski'sown lawyer, Ismail Ramsey, told Waymo's lawyers in a letter on Monday that Levandowski "plans to assert his Fifth Amendment rights with respect to any documents requests served on him."

Waymo's attorneys, for their part, countered in a Tuesday letter to the judge: "Again, the only reason a subpoena was even required to be served in the first place is because Uber and Mr. Levandowski have attempted to construct an artificial distinction between themselves in an effort to delay their obligations to produce responsive information."

As Ars reported earlier this month, Uber's lawyers initially resisted producing a privilege log of their own. Uber's loga list of which documents shouldn't be disclosed to Waymo as part of civil discoveryishundreds of pages long, much of it e-mail from Uber's systems about the $680 million acquisition of Levandowski's startup, Otto. Levandowski is concerned about 42 documents that relate to a due diligence report about the Otto acquisition. His lawyers won't even say who the report's author is.

Four days after that April 6 hearing, on April 10, Judge Alsupdenied Levandowskis lawyers attempt tohalt Uber from giving up its privilege log.

"At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege," Judge Alsup wrote. "That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed."

Levandowskis lawyers immediately appealed Alsups April 10 ruling on Tuesday to the US Court of Appeals for the Federal Circuit, which handles all patentappeals.

"I dont believe that you need until Wednesday at noon," the judge said.

On Wednesday, the judge also ordered that by April 25, Uber must produce a description of any and all LIDAR-related work performed by Levandowski, who still currently oversees Ubers self-driving car program.

"You are ignoring all of the other work and you never mentioned what Mr. Levandowski was doing," Judge Alsup told Uber lawyers during the Wednesday hearing. "What was he working on? It does leavethe impression that you have cleverly written around the problem of what Levandowski was working on even if it didnt turn into a prototype. Thats a fair question, and they are entitled to an answer."

Judge Alsup also noted that if Levandowski was going to continue to invoke his constitutional rights during the Friday deposition, the engineer couldnt do it in one fell swoop."It has to be invoked question by questionitll be a long day but you have to go through the process," he said, addressing Waymo attorneys.

Both sides will reconvene before Judge Alsup on May 3 to discuss Waymos motion for a preliminary injunction, which could put the brakes on Ubers self-driving work.

More:
Uber engineer accused of data theft must tell judge why he's ... - Ars Technica

The presiding judge in Alphabets lawsuit against Uber for allegedly stealing autonomous-car trade secrets has said that Uber must disclose certain basic details of a due diligence report conducted as part of Ubers August 2016 acquisition of self-driving tech startup Otto.

The report could play an important role in Alphabets allegations that the ride-hail company is using Alphabets proprietary self-driving technology.

The Google parent company claims that Ubers self-driving head, Anthony Levandowski, stole 14,000 files from Alphabet that included designs for its lidar Light Detection and Ranging technology. Lidar is key to most self-driving systems.

Uber counters that its technology is unique and distinct from that used in Alphabets self-driving efforts, which exist under the umbrella of an Alphabet subsidiary, Waymo.

A due diligence report is conducted by a third party as part of an acquisition. It looks at finances, legal issues and other details of a company that is being acquired.

Alphabet has claimed that the due diligence report will prove that Levandowski who worked on self-driving technology for Alphabet before leaving and co-founding self-driving trucking company Otto stole the files. Theres a question of whether the report included a review of any of the allegedly stolen documents. And if Alphabet knew who compiled the report, the company could subpoena them.

Last week, Levandowski filed a motion requesting that details of the due diligence report including the identity of the party that conducted the report not be disclosed in Alphabets suit.

Levandowski is not named as a party in the lawsuit, and is retaining his own attorneys, who filed the motion on his behalf. Uber did not sign on to the motion.

Judge William Alsup ordered that the report be included in the privilege log a list of documents that a party in a lawsuit argues should not be opened up to the court because they contain privileged information that Uber must compile. The judge is not at this time requiring that the report be opened up to the court, but is ordering it to be included in that list without basic details redacted.

There will be time enough to argue soon over whether the due diligence report itself must be produced, Alsups order said. But for now that report must be put on a privilege log in the conventional way without any of the redactions requested by counsel for Levandowski.

Levandowskis attorneys argued that revealing details of the report would violate his Fifth Amendment right against self-incrimination because the document details might furnish a link in a chain of possible incrimination.

At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege, Alsups order said. That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed.

More:
The judge in the Alphabet/Uber lawsuit rejects a Fifth Amendment ... - Recode

Investopedia

Samsung's Galaxy 8 Could Endanger Fifth Amendment Rights ... Investopedia Fifth Amendment rights, which protect citizens from incriminating themselves in court cases, may be in danger thanks to Samsung Electronics Co. Ltd's (SSNLF) ... Experts: Fifth amendment questions raised by Samsung Galaxy's face recognitionPlanet Biometrics all 2 news articles »

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Samsung's Galaxy 8 Could Endanger Fifth Amendment Rights ... - Investopedia

Last week, Samsung announced that its Galaxy S8 phone would let you unlock it by scanning your face a method that could be quicker and simpler than entering a passcode or even using a thumbprint. As we noted at the time, this isnt a strong security measure; in fact, someone already fooled it with a photograph. But theres another, less-obvious issue: one key Constitutional protection for passwords usually doesnt apply to biometric security measures like face scanning.

The Fifth Amendment, which protects people from having to incriminate themselves, holds that passwords or passcodes are testimonial evidence. In other words, you can refuse to give up your PIN because doing so would mean answering a question based on the contents of your thoughts, not providing a physical piece of evidence. But as early as 2013 the year Apple announced its Touch ID sensor security experts were warning that fingerprints wouldnt fall under this rule. So far, this theory has held up. A Virginia judge let police use a fingerprint to unlock a phone in 2014, and similar requests were granted by other courts in 2016 and 2017.

Standing there while a law enforcement officer holds a phone up to your face or your eye is not a testimonial act.

The self-incrimination analysis for biometric and face scanning would be the same as for Touch ID, says Jeffrey Welty, a law and government professor at UNC-Chapel Hill. Standing there while a law enforcement officer holds a phone up to your face or your eye is not a testimonial act, because it doesnt require the suspect to provide any information that is inside his or her mind.

Most people using Samsungs (or another companys) face-scanning system will never be charged with a crime. And this doesnt prevent things like searching visa applicants phones, where people are complying in order to get into the country, not because of direct law enforcement action. But the Fifth Amendment still provides a general legal layer of protection against smartphone searches, which can reveal a huge amount of personal information.

This isnt a totally cut-and-dried issue, however. In certain cases, courts can still require you to unlock a device with a passcode. If the police already know whats on the device and that the person in question is the owner, the foregone conclusion doctrine may apply, says Welty. Thats what happened last month when an appeals court ruled that a man needed to decrypt two hard drives believed to hold child pornography, because the contents werent in question.

Conversely, biometric security could still be testimonial under certain circumstances, and legal expert Oren Kerr has laid out an argument for protecting fingerprints under the Fifth Amendment. In his hypothetical example, police have a phone with a biometric sensor and seven possible owners, none of whom will claim it. Putting a finger to the sensor might not be testimony, but identifying yourself as the owner of the phone could be, and so could revealing which finger (or other body part) would unlock it. One subject of a phone-unlocking order made the latter argument last year, but in that specific case, it was shot down.

Even so, both these situations are edge cases. Bottom line, if you are concerned about whether law enforcement can compel access to your device, a password or passcode is much better than Touch ID or facial recognition, but it isnt ironclad, says Welty. Of course, if youre absolutely determined to keep your data private, you might want to just delete it.

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PSA: Samsung's new face scanner won't give you the legal protection of a passcode - The Verge